GET OFF MY LAND! WHAT DO PROPERTY OWNERS NEED TO DO TO PREVENT PUBLIC AND PRIVATE RIGHTS ARISING?

Two recent cases highlight the need for property owners (and especially would-be developers) to be alert to the risks posed by use of their land by third parties. Such use may turn into public or private rights of way which may reduce the land’s value and prevent, or at least impede, future development. For any landowner it is worth considering how to prevent their land being blighted in this way.

In Bennett v Winterburn the court ruled that a private pedestrian right of way had arisen in favour of the adjoining property (but that a parking easement had not arisen). In Ali v the Secretary of State, the High Court ruled that the decision to dedicate an alleyway as a public highway should be upheld. In both cases the landowners implemented some measures to prevent rights coming into existence, but in both cases these were, at least to some extent, insufficient.

The law applicable to these two cases is different: Mr Ali’s land was dedicated as a public highway under the Highways Act 1980, and in Bennett a private right of way arose by prescription, under the ancient doctrine of lost modern grant. However, in both cases the landowners suffered because third parties had been allowed to use their land for the requisite period of 20 years and this use was found to be “as of right”. Use of the land “as of right” is an essential feature of prescriptive rights. 

The decisive factor in both cases was the landowners’ perceived acquiescence in the use of their land by third parties. Greater opposition by the landowners would have rendered the use of the land contentious and prevented the use being “as of right” in each case. Alternatively, the landowners could have positively given permission for third parties to use the land. A sign stating that use of the land is with the consent of the owner, for example, would constitute permission and also prevent the user being “as of right”. 

Bennett v Winterburn

In Bennett, a car park had been used by suppliers and customers of the adjacent fish and chip shop both for parking and on foot to access the shop. A sign in the car park read “Private car park. For the use of club patrons only. By order of the committee”.

The Judge decided that the use of the car park for parking was not “as of right”. In his view the signs were sufficient to render the use contentious and prevent the creation of an easement. The Judge did accept that a pedestrian right of way had been acquired because the sign related to the use of the land as a car park only and made no reference to use on foot. The case has been appealed, however, and the Court of Appeal may well reach a different conclusion. 

Mr Ali loses his alley

In the second case, Mr Ali, the claimant, was applying for an order quashing the Secretary of State’s decision to designate an alleyway on his property as a public footpath. 

Evidence related to the locking of the door in the alleyway. The Court found it likely that the door had been locked at times over the Christmas period by Mr Ali and the former owner, and that their specific intention in locking the door was to avoid the acquisition of public rights.

The court upheld the decision of the public inquiry that the alleyway should be dedicated as a public highway. The decisive factor was that the door was locked over Christmas, when no one would have attempted to use the alleyway because the shops were closed. As such, the actions of the landowner did not go far enough to demonstrate a lack of intention to dedicate the land. 

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Comment

The acquisition of public and private rights over land is important in a number of scenarios and must be considered carefully on any purchase of land and before any redevelopment of land commences. Claiming such rights is an increasingly common way of seeking to prevent development. The appropriate steps to prevent the acquisition of such rights will depend on the particular circumstances, but may include installing appropriately worded signs and blocking access to the relevant land (either permanently or temporarily). It is, therefore, important that advice is taken at an early stage to prevent the acquisition of such rights.